New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration

Complex Lit Blog

May Court Transfer Venue under 28 U.S.C. § 1631 Only When Subject Matter Jurisdiction Is Lacking, Or Is the Absence of Personal Jurisdiction Enough? Circuit Split

Family Wireless #1, LLCv. Auto. Techns., Inc., 2015 U.S. Dist. LEXIS 115810 (E.D. Mich. Sept. 1, 2015): 1   The Court may also transfer venue pursuant to 28 U.S.C. § 1631. It states that when a court "finds that there is a want of jurisdiction, the court shall, if it is in the interests of justice transfer such action ...
Family Wireless #1, LLCv. Auto. Techns., Inc., 2015 U.S. Dist. LEXIS 115810 (E.D. Mich. Sept. 1, 2015): 1   The Court may also transfer venue pursuant to 28 U.S.C. § 1631. It states that when a court "finds that there is…
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2009 Revision to Rule 15(a) Can’t Be Read to Permit Amendment of Complaint “Once As a Matter of Course … after” Motion to Dismiss If Complaint Was Already Amended Once before the Motion Was Served

U.S. ex rel. D’Agostino v. EV3, Inc., 2015 U.S. App. LEXIS 17214 (1st Cir. Sept. 30, 2015): Plaintiff-appellant Jeffrey D'Agostino (the relator) challenges both the dismissal of his qui tam action and the antecedent denial of leave to further amend his complaint. For obvious reasons, we consider the second challenge first. That ...
U.S. ex rel. D’Agostino v. EV3, Inc., 2015 U.S. App. LEXIS 17214 (1st Cir. Sept. 30, 2015): Plaintiff-appellant Jeffrey D'Agostino (the relator) challenges both the dismissal of his qui tam action and the antecedent denial of leave to further amend…
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Must the SEC Plead and Prove Scienter in a Deceit-of-Auditors Case under 17 C.F.R. § 240.13b2-2 — Circuit Split

SEC v. Goldstone, 2015 U.S. Dist. LEXIS 116847 (D. N.M. Aug. 22, 2015): 5. Deceit-of-Auditors Claims. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission to an accountant in connection with SEC filings, among other t ...
SEC v. Goldstone, 2015 U.S. Dist. LEXIS 116847 (D. N.M. Aug. 22, 2015): 5. Deceit-of-Auditors Claims. Exchange Act rule 13b2-2 "provides that directors or officers shall not make or cause to be made a materially misleading statement or omission…
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Facebook Messages from Quadriplegic Authenticated by Testimony He Can Operate Cell Phone, Text & Use Facebook, Participant in Conversation Recognized His Facebook Account & Messages Matched His Manner of Communicating

United States v. Barnes, 2015 U.S. App. LEXIS 17222 (5th Cir. Sept. 30, 2015): Martel Torres Barnes ("Barnes"), Roger Randale Jones ("Jones"), and Kentorre D. Hall ("Hall") (collectively, the "Appellants") were charged in a superseding indictment with: (1) conspiracy to possess with intent to di ...
United States v. Barnes, 2015 U.S. App. LEXIS 17222 (5th Cir. Sept. 30, 2015): Martel Torres Barnes ("Barnes"), Roger Randale Jones ("Jones"), and Kentorre D. Hall ("Hall") (collectively, the "Appellants") were charged in a superseding indictment with: (1) conspiracy to…
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Judicial Notice of Internet Evidence — Court May Take Notice of Fact News Articles Published But Not Substance — Same for Government Records in California

Inewsource v. Superior Court, 2015 Cal. App. Unpub. LEXIS 3629 (Cal. Ct. App. May 26, 2015): Petitioner inewsource seeks disclosure of documents from real party in interest North County Transit District (the District) under the California Public Records Act (PRA). (Gov. Code, 6250 et seq.)[1] The documents at issue reflect th ...
Inewsource v. Superior Court, 2015 Cal. App. Unpub. LEXIS 3629 (Cal. Ct. App. May 26, 2015): Petitioner inewsource seeks disclosure of documents from real party in interest North County Transit District (the District) under the California Public Records Act (PRA).…
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Are Attorney’s Fees and Not Just Costs Awardable under Fed. R. Civ. P. 41(d) for a Prior Action That Was Voluntarily Dismissed and Based on Or Including the Same Claim Against the Same Defendant? — Circuit Split

Raniolo v. Southport, LLC, 2015 U.S. Dist. LEXIS 116047 (E.D. Mo. Sept. 1, 2015): This matter comes before the Court on Plaintiffs' Petition and Request for Attorneys' Fees and Costs [ECF No. 24] and Defendants' Memo of Costs [ECF No. 29]. I.  FACTUAL BACKGROUND This lawsuit ...
Raniolo v. Southport, LLC, 2015 U.S. Dist. LEXIS 116047 (E.D. Mo. Sept. 1, 2015): This matter comes before the Court on Plaintiffs' Petition and Request for Attorneys' Fees and Costs [ECF No. 24] and Defendants' Memo of Costs [ECF No.…
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RICO — Cover-Up Conspiracy Insufficiently Related to Original Conspiracy to Be Part of Same Pattern, Cannot Establish Open-Ended Continuity — Attorney Fees in Bringing RICO Claim ≠ RICO Injury — Factually Pleading Conspiracy (8(a), Not 9(b))

The Knit With v. Knitting Fever, Inc., 2015 U.S. App. LEXIS 15575 (3d Cir. Sept. 2, 2015): The Knit With ("TKW") appeals several orders the district court entered in TKW's suit alleging various claims under state and federal law. For the reasons that follow, we will affirm the district court. I.
The Knit With v. Knitting Fever, Inc., 2015 U.S. App. LEXIS 15575 (3d Cir. Sept. 2, 2015): The Knit With ("TKW") appeals several orders the district court entered in TKW's suit alleging various claims under state and federal law. For…
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Rule 11 Sanctions — Purpose: Deter Baseless Filings and Streamline Administration of Courts — Court Must Describe Conduct Determined to Constitute Violation and Explain Basis for Sanction Imposed

Mollis v. Corso, 2015 R.I. Super. LEXIS 42 (R.I. Super. Ct. Jan. 22, 2015) (see also our post of Dec. 21, 2014, regarding an earlier decision in this proceeding): This matter comes before the Court to set the appropriate amount of sanctions to be imposed upon Attorney Mark Welch (Attorney Welch) who, in representing former Secretary o ...
Mollis v. Corso, 2015 R.I. Super. LEXIS 42 (R.I. Super. Ct. Jan. 22, 2015) (see also our post of Dec. 21, 2014, regarding an earlier decision in this proceeding): This matter comes before the Court to set the appropriate amount…
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Judicial Notice of Internet Evidence — Use of Google Maps to Calculate Distances and Ascertain Geographic Locations

Ward v. Stewart, 2015 U.S. Dist. LEXIS 130686 (N.D.N.Y. Sept. 29, 2015): Plaintiffs Kevin A. Ward, Sr. and Pamela Ward (collectively "plaintiffs") initially filed this action in Supreme Court, Lewis County, against defendant Anthony Wayne Stewart ("Stewart" or "defendant"), asserting four causes of actio ...
Ward v. Stewart, 2015 U.S. Dist. LEXIS 130686 (N.D.N.Y. Sept. 29, 2015): Plaintiffs Kevin A. Ward, Sr. and Pamela Ward (collectively "plaintiffs") initially filed this action in Supreme Court, Lewis County, against defendant Anthony Wayne Stewart ("Stewart" or "defendant"), asserting…
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Internet Evidence — Terrorist Website Authenticated by Fact Governments Rely on It, Language and Facts in Postings, Exclusive Interviews, Non-Public Details re Leaders, and Official Seals — No Chain of Custody Needed for Accurate Video

Linde v. Arab Bank, 2015 WL 1565479 (E.D.N.Y. April 8, 2015): VII. Evidentiary Rulings A. Authentication Generally
Linde v. Arab Bank, 2015 WL 1565479 (E.D.N.Y. April 8, 2015): VII. Evidentiary Rulings A. Authentication Generally Federal Rule of Evidence 901 “does not erect a particularly high hurdle” for authenticating evidence. United States v. Dhinsa, 243 F.3d 635, 658 …
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Recent Posts

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

RICO and Injunctions: (1) State Court Actions Designed to Perpetuate and Monetize a RICO Violation Are Enjoinable under RICO, Even Though They Are Not Themselves Alleged to Be Predicate Acts [Note: Noerr Pennington Applies in RICO Actions] — (2) Although Civil RICO’s Text and Legislative History Fail to Reveal Any Intent to Override the Provisions of the Federal Arbitration Act, Arbitrations Are Enjoinable Under the “Effective Vindication” Doctrine Where They Operate As a Prospective Waiver of a Party’s Right to Pursue Statutory RICO Remedies — (3) Arbitration Findings May Be Given Collateral Estoppel Effect in a Civil RICO Action — (4) Injunction of Non-Corrupt State Court Litigations That Furthers a RICO Violation Are Enjoinable Under the Anti-Injunction Act’s “Expressly Authorized” Exception — (5) “The Irreparable Harm Requirement Is The Single Most Important Prerequisite For The Issuance Of A Preliminary Injunction” (Good Quote) — (6) When Injunction Is Based on “Serious Questions on the Merits” Rather Than “Likelihood of Success,” Court May Rely on Unverified Pleadings and Attached Exhibits to Assess the Merits, Unless the Opponent Has Raised Substantial Questions (Here, the Opponent Failed to Request an Evidentiary Hearing) — (7) Whether Amended Pleading Moots An Appeal Turns on Whether It Materially Changes the Substantive Basis for the Appeal — (8) Meaning of “In That” (“Used To Introduce A Statement That Explains Or Gives More Specific Information” About A Prior Statement)

RICO: Fraudulent Concealment Must Prevent Discovery of the Injury to Toll Statute of Limitations

Rule 37 Default Judgment Sanction: (1) Abuse of Discretion Review = Legal Conclusions De Novo. Factual Findings for Clear Error — (2) Client May Be Sanctioned for Misconduct of Its Counsel, Though Here Client Was Directly Involved in Bad Faith Misbehavior — (3) Is There A Difference, Under Rule 11 As Opposed to Rule 37, Concerning Whether A Client Can Be Sanctioned for Its Counsel’s Misconduct? — (4) While Sanctions of Last Resort (Dismissal/Default) Are Apt Only If Lesser Sanctions Wouldn’t Ensure Compliance, Rule 37 Doesn’t Require the Vain Gesture of First Imposing Lessert Sanctions When It Is Clear They Would be Ineffective — (5) Court’s Reconsideration of Non-Final Orders Is Governed by Rule 54(b), And Court’s Discretion under That Rule Is Governed by the Law-of-the-Case-Doctrine

RICO: (1) Special Pleading Requirements? — (2) Although Enterprise Must Be More Than a Summation of the Predicate Acts, The Predicate Acts Can Demonstrate the Existence of the Enterprise — (3) Requirement That Association-in-Fact Exist For Purposes Other Than Just to Commit Predicate Acts Merely Requires Continuity — (4) To State an Association-in-Fact Enterprise Consisting of One Natural Person and Collection of Legal Fictions Requires Factual Detail As to How They Acted Together — (5) “A § 1962(c) Enterprise Must Be More Than An Association of Individuals Or Entities Conducting the Normal Affairs of a Defendant Corporation” (Good Quote)

RICO: (1) Fee Award May Exceed Amount Recovered — Strict Proportionality Not Required — (2) Nonmonetary Benefits and Injunctive Relief Recovered Also Relevant Factors — (3) Loss on Some Claims Need Not Result in Lowered Fees, Especially When Both Arise Out of The Same Nucleus of Operative Facts

RICO: Indirect Purchasers (Car Buyers/Renters) Lack Standing to Sue Manufacturers for RICO Violations Even Though Intermediaries (Auto Dealer Direct Purchasers) Lack Any Damages

RICO: Statutory Requirement that RICO Be Liberally Construed Does Not Establish a More Liberal Pleading Standard for RICO Claims — “To Be Sure, Adequately Pleading a RICO Claim Can Be Challenging” (Good Quote) — Court May Dismiss Action Pursuant to Rule 41(b) Absent A Motion

Electronic Spoliation/Rule 37(e): (1) Finding of Recklessness But Neither Gross Negligence Nor Willfulness in Loss of Video Evidence Precludes Rule 37(e)(2)’s Severest Sanctions Because (i) No Intent to Deprive and (ii) Rule 37(e)(2) Displaces District Court’s Power to Invoke Inherent Power to Impose Those Sanctions — (2) Appellate Review = Abuse of Discretion, With The Caveat That Whether The District Court Applied The Correct Legal Standards Is Reviewed De Novo — (3) Inherent Power Is Often Available As An Alternate Source of Sanctioning Power But Can Be Limited by Rule or Statute, Something Which Courts Do Not Lightly Presume — (4) The Text of Rule 37(e)(2), As Confirmed by the Advisory Committee Note, Displaces Inherent Power to Impose the Sanctions Specified in the Rule or Any More Severe Sanctions — (5) “Intent to Deprive” in Rule 37(e)(2) = “The Willful Destruction Of Evidence With The Purpose Of Avoiding Its Discovery By An Adverse Party” — (6) Appellate Standing Conferred by Virtue of Issuance of Sanctions Regardless of Merits Outcome — (7) Value of Advisory Committee Notes in Interpreting Rules Enacted without Change Despite General Reticence to Rely on Legislative History

RICO: (1) Plaintiff Need Not Suffer Injury from Each Predicate Act to Establish Standing, And The Pattern May Include Predicates As to Which No Plaintiff Has Standing — (2) 7 Elements of a Civil RICO Claim (2d Circuit Articulation) Which Must Be Established As to Each Defendant — (3) Requirements of an Association-in-Fact Enterprise — (4) Each Defendant Must Personally Commit 2 or More Predicate Acts — (5) Pattern of Racketeering Activity: Horizontal and Vertical Elements — (6) No Requirement That All Members of a RICO Enterprise Joined at Inception — Can Join Over Time/Others Can Quit — (7) Cannot Charge 2 Predicate Acts Where One Action Violates Two Statutes — (8) A Footnote to Consider for Briefs: “Unless Otherwise Noted, When Quoting Judicial Decisions This Order Accepts All Alterations And Omits All Citations, Footnotes, And Internal Quotation Marks.”

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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